Tuesday, May 31, 2011

The fourth public hearing on the Jan Lokpal Bill was conducted on May 26.

As I first reached the venue, a park in the heart of a crowded residential colony in East Shalimar Bagh, New Delhi, I was struck at how deserted the park seemed to be, except for the people who were there to make the presentation, and the children who were mildly interested in finding out what had deprived them of playing space for the evening.

I had read newspaper reports about how the public has been shockingly uninterested in these public consultations, but nothing had prepared me for this. One of the organisers strolled over, smiled and said, “Well, it seems we have at least an audience of one.”

“What are they screening?” asked a lady from the balcony of her first floor apartment. “It’s a movie about Anna Hazare,” responded her friend on the ground. In the face of everything, the organisers did a brilliant job in getting people interested. There were patriotic songs and clips playing before the main presentation started, and one of the coordinators made it a point to keep reminding the people that this was about them, and their problems. People did start trickling in after that, and there was a crowd of about thirty people by the time the presentation ultimately started. This was mainly a documentary describing the flaws in the current legal regime dealing with corruption, the main highlights of the Jan Lokpal Bill, (prepared by the India Against Corruption, hereafter referred to as the Bill) its criticisms, and why the authors considered that these were unfounded. This movie is also available online.

The movie talks about the primary functions of the Lokpal which include primarily the responsibility of rooting out corruption from all public authorities, right “from the Panchayat to the Prime Minister.” All such proceedings are to be concluded within the year, even if this means hiring additional staff. More stringent and innovative penalties than the current ones have been proposed through the Bill. For instance, confiscating the assets of a person when they are acquired through corruption was presented.

In response to concerns surrounding the susceptibility of the Lokpal to corruption, the procedure for appointment of the Lokpal was gone into. Such a procedure includes people from different background, representing many diverse interests so that the selection does not swing in favor of a particular ideology or party. All meetings of both the Search Committee (that prepares nominations) and Selection Committee (that ultimately appoints the members) involved in the process will be recorded and broadcast for the sake of transparency.

Currently the CJI’s permission must be taken to lodge an FIR against any judge. The Bill proposes that a seven member bench of the members of the Lokpal will now make this decision following a public hearing. There are measures to ensure the protection of the complainants so that people can come fearlessly forward.

Today, if a company is accused of getting its work done through bribing government agencies, the investigating agency must collect proof that bribes were given and taken. Since no witnesses are present in such situations, this becomes hard to prove. Under the Bill, if some unlawful act is done for some company, then it will be assumed that a bribe was given.

The Bill also proposed to merge all other agencies investigating corruption under the Lokpal at the central level and the Lokayukta at the state level. One of the most useful parts of the movie was the response given to the criticisms the Bill is facing now.

For instance, many people have suggested exclusion of the Prime Minister from the jurisdiction of the Lokpal, since this can taint his or her image at the international level. It was forcefully asserted that there can be no greater shame at the national or international level for a democracy to protect a corrupt Prime Minister. Along the same lines, giving the Lokpal the authority to decide on whether the prosecution of judges is to be continued was defended.

Secondly, the Bill has been sharply criticized for trying to cover too much in a single sweep. The critics have suggested that the Lokpal should confine itself to scams of a large scale magnitude and leave the institution of proceedings for every day matters to other agencies. This is primarily based on the fear that corruption is so pervasive that the Lokpal would be steeped in arrears if it tries dealing with everything.

This was countered at four levels. First, it was pointed out that the very point of the Bill was to reach out to the common man by recognizing the pervasiveness of corruption. Secondly, since any complaint has to travel through multiple levels (officer, head of department, vigilance officer and then the Lokpal),it is unlikely that the Lokpal will be overburdened. Third, the Bill provides for the appointment of additional staff in case the complaints are too many to deal with. Fourth, once the first few complaints have been received, this will surely have a deterrent effect and the incidence of corruption will decrease, gradually reducing the workload of the Lokpal over time.

Some have also worried about doing away with other bodies that deal with corruption, insisting that there is no harm in letting these bodies function in addition to the Lokpal. However, this criticism has not brought about a change in the Bill since empirically, none of these other bodies have proved that they are capable of functioning independently and efficiently. In such a scenario, they can only pose an unnecessary burden on our national resources.

These issues are important because they are still contentious, and forms were circulated at the end soliciting the opinion of the viewers on these criticisms to see if the public also regards them as unfounded. This seems to be a good way of making the process more democratic, but I’m not sure how many people ended up actually filling the forms. This attempt at spreading awareness was bolstered with the distribution of pamphlets and video CDs that summarized key features of the Bill. Questions were invited at the end, but none seemed forthcoming.

The organization was done well, but the low turnout was disconcerting. At the end, I was left with the haunting feeling that you can do very little to help a citizenry that doesn’t seem to want to help itself.

Monday, May 30, 2011

Various concerns have been raised after rules relating to the internet were notified on 11th April 2011. Objections have been raised on mainly three fronts: one, that an unreasonable standard has been imposed on the intermediaries and cybercafé owners who will face liability for acts that are not strictly within their control; two, that the said rules abridge the fundamental right to freedom of speech and expression that has been enshrined in Article 19 of the Indian Constitution and three, that the right to privacy has been contravened through the power conferred on government agencies to access sensitive personal information of internet users.

To start with, it must be noted that the liability imposed on intermediaries is not absolute. They are not in fact responsible for all the activities of their users. They are only required to publish relevant rules and policies and inform the users that specific kinds of materials have been disallowed through the rules (Rule 3, the Information Technology (Intermediaries guidelines) Rules, 2011). In addition to this, hosting or transmitting illegal information is only problematic if it is done “knowingly.” The intermediary is required to remove the offensive information within thirty six hours of it being stored or hosted or published, but only if it is brought to his notice, or he otherwise obtains knowledge. This does not seem to be as tyrannical as it is being made out to be, and the idea that intermediaries bear the “extremely onerous responsibility to be able to police every bit of content before it goes out” seems to be a misconception.

Another report claims that the effect of the new rules is that cybercafé owners must now make sure their equipment is not used for illegal purposes. On the contrary, the whole thrust of the new rules is towards ensuring that if cybercafé equipment is in fact used for illegal purposes, the user is easy to trace. No unrealistic expectations have been put on café owners. Duties include maintaining log record of the uses to which their equipment is put, collecting copies of identification from all users and complying with the physical layout mandated by the rules.

Secondly, concerns regarding freedom of speech and expression have disturbed the online community. The prohibition on materials that have been described in vague terms such as “disparaging”, “grossly harmful” and “objectionable” have caused great alarm. In the words of Nikhil Kumar Verma, one of India’s top ten most influential tweeters, "No-one has a say of what is right, and what is wrong... if someone objects you can't talk about it." According to the head of a digital marketing agency in Mumbai, “Any individual can write to us and say that piece of content offends us and without any recourse we have to take it down." This does not seem to be a tenable objection. It is absurd to assume that the standard laid down in the rules is a subjective standard. Terms such as “objectionable” are surely to be adjudged based not on what overly sensitive people might regard as objectionable but what a reasonable man might perceive as such.

Still, it is well worth noting that these terms have not been defined and are open to misuse. Already, Google has received reports from the State asking them to take down content that is critical of leading politicians, prompting them to publicly reject the rules as anti-democratic. This obviously raises concerns that these terms might be open to a broad, arbitrary interpretation.

While examining this objection in the light of the Constitution, one way of looking at these provisions is through the lens of the basic norm of statutory interpretation which requires that if it is possible to interpret a statute in two ways, only one of which is constitutional, then “a narrow pedantic interpretation running counter to the constitutional mandate ought always to be avoided.” This means that these terms are to be read in such a manner so as to be consistent with the reasonable restrictions on the freedom of speech and expression that have already been laid down in Article 19(2) of the Constitution of India. Given this interpretation, these rules merely impose additional duty on intermediaries in the light of existing restrictions, rather than imposing any new ones.

However, the lack of definition also leads us to a discussion surrounding the “void for vagueness” doctrine. According to a 5 judge bench of the SC,

“It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizens to "steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked".”

A provision is therefore vitiated by vagueness if it creates scope for “guiltless and innocuous innocent people” to be “arrested and prosecuted by abusing or misusing or misapplying this definition.” This idea has been recognized on other occasions as well, in the form of the “void for vagueness” doctrine, an idea borrowed from American jurisprudence. According to this doctrine, laws should be sufficiently clear so as to give notice of the conduct that is proscribed.

In the current matrix, there are three implications of this observation. Firstly, these ill-defined restrictions may well be held violative of the principles of natural justice, because the general public has not been given due notice of what sort of conduct is being sought to be controlled by these rules.

Secondly, the direct and inevitable impact of these rules, as bolstered by the SC’s observations, that people would “steer far wider of the unlawful zone”, i.e., people may hesitate before exercising their right to freedom of speech and expression for fear of violating these rules. This would amount to a violation of Article 19(1)(a) read with 19(2).

Thirdly, since it is vagueness that leads to such massive scope for abuse by enforcement agencies, it might be possible to successfully challenge the constitutionality of some of these measures. The only catch here is that high standard that has been articulated by the SC while invoking this doctrine may prove to be a hurdle. In the words of the apex court, this can be done if a Statute is “absolutely vague and its language wholly intractable and absolutely meaningless.”

Last, but most troubling, is the fact that these new rules allow for transfer of personal information, without the consent of the user, to government agencies as they state the reason for soliciting this information and don’t disclose it further on. Such personal information includes, inter alia, “sexual orientation” and “any of the information received under above clauses by body corporate for processing, stored or processed under lawful contract or otherwise.”

This sweeping provision has to be viewed against the fact that privacy has been recognized as a facet of the right to life in India. It is true that the right to privacy in India is subservient to compelling state interests, but recent case law has aimed at expanding this right. The Selvi judgment has recognized that the right to privacy has both mental and physical aspects. In the celebrated Naz judgment that deals in particular with the right to privacy of people of varying sexual orientations, the Delhi High Court described the right to privacy as “private space in which man may become and remain himself.”

While the relaying of information that strictly relates to a compelling state interest might be lawful, the Centre may perhaps want to review the unregulated powers that have been granted to the Government under Rule 6 of the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011, in the light of the broadening contours of the right to privacy. But the Government does not seem interested in answering these criticisms.

Thursday, May 26, 2011

LAOT is pleased to announce that Arushi Garg, who has contributed the previous two posts, will intern as a blogger for the next few weeks. She is a third year law student from NALSAR University of Law, Hyderabad. She tweets regularly here linking select articles & news stories of interest to our readers.

Wednesday, May 25, 2011

Steven Wilkinson, the Nilekani Professor of India and South Asian Studies at Yale University, and one of the world's leading political scientists working on India, will be presenting a paper at the Centre for Policy Research on 'Veterans and Ethnic Cleansing in the Partition of India' (by Saumitra Jha (Stanford) and Steven Wilkinson (Yale)). The presentation will take place on Monday 30 May at 11.30 AM. All those who are interested should feel free to attend.

Abstract:

This paper analyses the pattern of ethnic cleansing during and after the partition of India, using new all-India data on both the precipitants of violence and the scale of ethnic cleansing. The paper shows that the pattern of cleansing is in fact much more varied than many accounts suggest. Our main finding is that the levels of cleansing are associated with larger numbers of frontline veterans in a district; ethnic cleansing requires not just the motivation for violence, or the existence of a security crisis, but also military skills and organization. While the link between veterans and violence has been asserted before, especially for Punjab, this is the first paper to demonstrate the relationship empirically, and to show that frontline experience, rather than military training per se, is the crucial factor.

The relationship between veterans and political mobilization arguably has implications for other post-1947 developments in India, such as the Punjab movement, and also perhaps shifts in patterns of central spending in some states.

Author biography:

Steven Wilkinson is Nilekani Professor of India and South Asian Studies at Yale University, where he teaches political science. His books include Votes and Violence: Electoral Competition and Ethnic Riots in India (Cambridge, 2004), which was the co-winner of the Woodrow Wilson award for the best book in political science, and Patrons, Clients and Policies: Patterns of Democratic Accountability and Political Competition(Cambridge 2007), co-edited with Herbert Kitschelt.

Tuesday, May 24, 2011

The Supreme Court has gone to the High Court again, appealing against a CIC order. If it was about the declaration of assets earlier, this time it is to assert the primacy of the Supreme Court Rules over the RTI Act.

The main issue at hand is whether the non-obstante clause in Section 22 of the RTI Act, 2005, overrides the Supreme Court Rules. According to the statutory provision in question, the provisions of the RTI Act are to have effect “notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

Order XII, Rule 2 states that the Supreme Court may provide all documents, records and pleadings associated with a case to anyone who was not a party to the case if good cause is shown for seeking this information and prescribed procedure (including payment of prescribed fees) is duly followed.

Both provisions have been put in place to facilitate transparency and in that sense, are not inherently inconsistent with each other. But there are some crucial differences. Unlike the Supreme Court Rules, the RTI Act provides for a time limit within which such information is sought, offers no discretion if the information in question is covered by the Act and does not require the party to state any reason at all for seeking this information. A system of differential pricing is followed with respect to the payment of fees under the RTI Act.

The CIC has held that since both provisions are two ways of achieving the same end, there is no inconsistency of the sort covered by Section 22 and it is therefore open to the parties to seek information through whatever channel they use. Such an inconsistency does emerge when information is to be mandatorily made available to an applicant under the RTI Act, but is denied to him or her under the Supreme Court Rules. In such a situation, the RTI Act trumps the Supreme Court Rules since Section 22 is then operationalized. Any other interpretation would be a violation of the right to information that has been recognized as a fundamental right by the Supreme Court.

In coming to this conclusion, the CIC discussed two important maxims. The first of these is - lex posterior derogat priori - non est novum ut priores
lages ad posteriores trahantur- which means that an earlier Act must give way to a later one, if the two cannot be reconciled. The CIC held that this was to be done in only those rare situations where no harmonious construction of the two was possible. Thus, both provisions were recognized as valid modes of obtaining information unless there was an obvious conflict of the sort described above.

The other maxim discussed generalia specialibus non derogant(i.e., general things do not derogate from special things) was similarly dealt with. The CIC held that the general provisions of the RTI Act would not take away from the SC Rules unless there was a stark inconsistency between the two that led to an inability to apply this maxim.

The SC has approached the High Court challenging such a construction.
Apart from the grounds that have already been dealt with by the CIC, a fresh ground of appeal seems to be that the SC Rules are framed under the direct authority of the Constitution and should therefore trump the RTI Act This argument must necessarily fail. The SC Rules have been framed under the authority of Article 145 of the Constitution and are “[s]ubject to the provisions of any law made by Parliament.” The interpretation given by the CIC seems to be sound in law and is unlikely to be overturned.

However, the related issue of the kind of information sought, rather than the mode of information might be well worth exploring. The information sought by the applicant extended to “reasons for judicial decisions.” Arguably, the requirement that all decisions must be reasoned decisions has already found its way into the corpus of principles of natural justice, and there is little to be gained by allowing applications demanding reasons beyond those that have already been furnished. In that sense, these applications would largely be superfluous, and would unnecessarily consume time and resources.

ADDENDUM

Moreover, Section 4(1)(d) of the RTI Act, explicitly mentions that the ambit of the Act extends to reasons for all administrative and quasi-judicial decisions. Had the Legislature wanted to include judicial decisions, nothing would have been easier than to mention that in the said provision. The Legislative intent was clearly to exclude judicial decisions from the ambit of the RTI Act.

The recent political controversy in Karnataka has thrown up the legal question of whether or not it was constitutional for Governor H.R. Bharadwaj to have recommended President’s rule in the state in accordance with Article 356(1) of the Constitution of India. It also raises a fundamental question of whether or not a loss in majority is tantamount to a situation where the government cannot be carried out in accordance with the provisions of the Constitution. As the following examination will reveal, both questions must be answered in the negative. It is thus not surprising that the Centre has rejected the Governor’s report.

The authority on most issues relating to Article 356 is the nine-judge verdict delivered in S.R. Bommai v. Union of India (AIR 1994 SC 1918).

This decision (with six different opinions) is a comprehensive exposition of the law surrounding the imposition of President’s rule under Article 356. The bench was constituted to review the proclamations issued under Article 356(1) in six different states. While reading the part concerning Karnataka, one is imbued with a strange sense of déjà vu. The problem in this case arose when 19 of the Janata Dal MLAs gave in signed letters to the Governor stating that they no longer supported S.R. Bommai’s government in Karnataka.. Things got complicated when seven of these MLAs then backtracked and said that they had chosen to continue extending support to the Bommai government. Bommai offered to prove his majority on the floor of the House. The Governor, however, sent a report to the President saying that he was concerned that the change in stance was a result of horse-trading, and that the Legislative Assembly had lost its confidence in the government. President’s rule was imposed.

The majority in Bommai held the said declaration was unconstitutional, and condemned it in the strongest terms: “We are of the view that this is a case where all cannons of propriety were thrown to wind and the undue haste made by the Governor in inviting the President to issue the Proclamation under Article 356(1) clearly smacked of mala fides. The Proclamation issued by the President on the basis of the said report of the Governor and in the circumstances so obtaining, therefore, equally suffered from mala fides.”

All the judges were in agreement that this power under Article 356 is to be exercised with great caution and has to be balanced with the principle of federalism that pervades the Indian Constitution. Sawant and Nayar, J.J., went to the extent of stating that “It is not every situation arising in the State but a situation which shows that the constitutional Government has become an impossibility, which alone will entitle the President to issue the Proclamation.” Five of the nine judges (Justices Pandian, Jeevan Reddy, Agrawal, Sawant and Nayar) opined that it is mandatory for the Governor to conduct a floor test before recommending the imposition of President’s rule based on loss in confidence.

On the question of proving majority the Bench said, “The principle of democracy underlying our Constitution necessarily means that any such question should be decided on the floor of the House. The House is the place where the democracy is in action. It is not for the Governor to determine the said question on his own or on his own verification. This is not a matter within his subjective satisfaction. It is an objective fact capable of being established on the floor of the House.” This would also help to determine if there is any other candidate who commands the confidence of the House.

The Report on the Justice Sarkaria Commisison on Centre-State Relations was quoted and relied upon extensively in the Bommai case. It is to be noted that while talking about illustrations of the improper invocation of an Article 356(1) Proclamation, in paragraph 6.5.01, the Bench mentions a situation where the Governor recommends the same on account of losing its majority support without ordering a floor test first. The converse then must also be true, i.e., if a floor test is ordered and a motion seeking confidence is not carried, a Proclamation under 356(1) is valid, that is, if the Chief Minister who lost the confidence of the House, does not quit on his own.

This is the context in which the situation in Karnataka is to be viewed.

At the very outset, it must be remembered that the refusal to conduct a floor test would have vitiated the Governor’s report had it been based on the Yeddyurappa government not enjoying the confidence of the Legislative Assembly. This is because without a floor test, it is impossible to conclude whether or not Yeddyurappa still enjoyed the confidence of the House. This has been made the only constitutional means of testing the confidence in a Ministry post the Bommai case. It simply cannot be assumed that the disqualified MLAs would have voted against him if they had been allowed to participate in the floor test conducted in October, 2010, because the Bommai decision bars any such assumptions from being made. Even if this assumption was made, a floor test was still called for because the BJP MLAs who were disqualified were quite adamant until recently that their loss in faith extended not to the BJP, but only to the leadership of B.S. Yeddyurappa, making it safe to assume that another leader from the BJP could have ended up commanding the confidence of the House (Jarkiholi & Ors v. Yeddyurappa & Ors., CIVIL APPEAL NOs.4444-4476 OF 2011).

As it happens, these discussions must remain academic because the Governor has denied that his report recommended invocation of Article 356(1) based on loss in majority. His move was undertaken since, “the sanctity of the floor test has been deliberately subverted thereby resulting in the breakdown of the constitutional mechanism.” He is careful to point out that a loss in majority is not the only way of determining the breakdown of constitutional machinery. (“Karnataka Crisis: Governor H.R. Bhardwaj Justifies Recommending President’s Rule”,).

Prima facie, this sounds like a sound argument. However, the Bommai case must be reverted to. There too, the Governor was concerned about how “horse-trading was going on and the atmosphere was vitiated” since he believed the backtracking of the 7 MLAs to be a result of unconstitutional means, and not something they had done of their own free will. The court held that these assumptions of the Governor were unsustainable in law. Even if he suspected coercion on the part of the Chief Minister, the proper remedy was to conduct a floor test. The report of the Governor is contingent upon his subjective opinion, but this must be backed by objective circumstances and not assumptions of horse-trading or vitiated consent. The objective proof of a floor test (and the passing of a confidence motion) is regarded as sufficient in these circumstances.

In Karnataka also, the press communiqué released by the governor states that the problem is “tampering with the composition of the Legislative Assembly in unconstitutional manner.” This in itself in not a sustainable basis for a proclamation under Article 356(1). This has to be necessarily backed by a floor test. The law, as posited in the Bommai case, is unambiguous and clear. The Karnataka CM offered to participate in a floor test repeatedly to prove his majority but was not allowed to do so. Thus, the Centre was justified in disregarding this report and refraining from invoking Article 356 in Karnataka.

This brings us to why proving majority on the floor of the House is important at all. Failure to command majority in the Legislature has never been the sole criterion for an invocation of President’s rule under Article 356. For instance, in July 1959 in Kerala, the President invoked Article 356 even though the Communist government enjoyed majority support because he felt the government had lost the support of the people and was no more in accordance with the democratic values of the Constitution. Moroever, we are all aware of Narasimha Rao’s minority government in the 1990s, though there is no provision for imposition of President’s rule at the Centre.

But the underlying principle here is that the minority character of the Government, by itself, is not a factor which should lead to an inference of illegitimacy just as the majority character of the Government is not an insurance against imposition of President’s rule, if the other factors necessitating the Proclamation under Article 356(1) exist. In other words, the minority Government, even if it is widely perceived to be so, must lose the confidence of the House, in order to invite the Proclamation.

While the Constitution does not mention majority (or minority or coalition) governments, Article 164(2) does lay down the principle of collective responsibility to the Legislative Assembly. This means that even if a minority government is in power, it must enjoy the confidence of the Legislative Assembly. This was aptly summed up by Jeevan Reddy, J., in the Bommai case-“The Constitution does not create an obligation that the political party forming the ministry should necessarily have a majority in the Legislature. Minority governments are not unknown. What is necessary is that government should enjoy the confidence of the House.”

This is the reason that a floor test is essential before a Governor decides to recommend a Proclamation under Article 356. Even if letters are otherwise written by MLAs of the ruling party withdrawing their support, the government need not be dismissed if the CM can still prove that his government enjoys the confidence of the Legislative Assembly. It does not matter that withdrawal of support leads to a loss in majority, if the minority government is able to prove that it still enjoys the confidence of the House.

[This post was written by Arushi Garg, third year law student from NALSAR University of Law, Hyderabad and me.]

Earlier this year, in Prafull Goradia v. Union of India [decided January 28, 2011], the Supreme Court of India considered the constitutional validity of the Haj Committee Act, 2002, and in particular, the air fare subsidy granted by the Indian government to Haj pilgrims. The petitioner contended that his fundamental right under Article 27 of the constitution had been violated. Article 27 ensures that “no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination”. The argument was that the subsidy was being funded by taxpayer money. Broadly, constitutional “secularism” stands for two propositions, (1) free exercise, and (2) non-establishment. Article 27 arguably furthers the latter proposition, i.e., that the state should not be seen as establishing or endorsing any religion, by forcing people to pay religious taxes.

While dismissing the petition, the court [Justices M. Katju and G.S. Misra] found that Article 27 operates even within the context of general taxing statutes, but it only militates against the use of a “substantial part” of the tax paid, toward the promotion or maintenance of any particular religion or religious denomination. A small proportion of taxes paid under a general taxing statute can accordingly be used by the state to fund religious groups. In the court’s calculations, 25% is a substantial amount:

“In our opinion Article 27 would be violated if a substantial part of the entire income tax collected in India, or a substantial part of the entire central excise or the customs duties or sales tax, or a substantial part of any other tax collected in India, were to be utilized for promotion or maintenance of any particular religion or religious denomination. In other words, suppose 25 per cent of the entire income tax collected in India was utilized for promoting or maintaining any particular religion or religious denomination, that, in our opinion, would be violative of Article 27 of the Constitution...A balanced view has to be taken here, and we cannot say that even if one paisa of Government money is spent for a particular religion there will be violation of Article 27.” (emphasis supplied)

Referencing the counter affidavit filed by the central government, the court cited similar instances where the state bears religious expenses, which are constitutional because the expenses are “small…in proportion to the entire tax collected”: expenses incurred for the Kumbh mela, for pilgrimage to Mansarovar, and for providing facilities to pilgrims visiting temples and gurudwaras in Pakistan.

The court’s holding arguably supports the proposition that the idea of secularism under India’s constitution is accommodative. For this reason, cabinet ministers can take their oaths of office in the name of God, and perhaps for this reason that “benevolent” foundation ceremonies can be conducted at High Court buildings.

Monday, May 23, 2011

For those who wish to understand the significance of the results of the latest assembly elections, Frontline's latest issue will prove to be a useful resource. I was preoccupied with issues, which had no bearing on elections, and they were these three:

The May 11 judgment suffers from an inherent contradiction. It suggests that the curative petitions seeking the setting aside of the 1996 Keshub Mahindra judgment did not invoke any of the relevant grounds justifying the Court's curative jurisdiction and that the petitioners did not offer sufficient explanation for filing the petitions 14 years after the judgment. If the Court did indeed find inordinate, but inexplicable delay in the filing of the curative petitions, and lack of relevant grounds for invoking its curative jurisdiction, the Court has no explanation why it agreed to hear the petitions, by constituting a Constitution Bench. Obviously, these are easily verifiable facts, and would not have required the Court's valuable time to find them.

Thursday, May 19, 2011

The debate on how we make laws has intensified in light of the disagreements on the Jan Lokpal Bill. Shamnad made an important point earlier on this blog that there is a democratic deficit in the law-making process at the moment, which needs to be corrected.

The report surveys pre-legislative and legislative processes in South Africa, Canada, the United Kingdom, Switzerland, the United States of America and the European Union in order to set out certain suggestions that may facilitate a fair, transparent and effective manner of enabling public participation in similar processes in India. In addition to information on international law provisions recognising the right of public participation, the report discusses participatory mechanisms in domestic jurisdictions under the following categories: (a) source of obligations to ensure public participation (b) types of instruments for which public participation is encouraged (c) manner of facilitating public participation (d) groups/entities involved in consultation and (e) practical problems hindering effective participation and the drawbacks of participatory procedures. Most of us are aware of the dangers of comparative law, but we should also be alive to its uses. Just because South Africa or the United Kingdom adopts one approach, it is not reason enough for India to follow suit. But when we are trying to confront similar problems, it is worth looking at how others have tried to solve them, if only to learn from their mistakes. The robust South African approach to pre-legislative public participation is particularly noteworthy.

I recently had this piece appear on Outlook India online about what lessons India might be able to take away from the history of other South Asian countries' anti-corruption efforts. Despite the unacceptable levels of corruption in India it still consistently ranks as the least corrupt country in South Asia, which begs the question what is India doing right, or as I focus on, what are other countries in South Asia doing wrong. After all, the other countries in South Asia arguably have been much more zealous in prosecuting corruption, particularly corruption in higher office. Yet, ironically this is partly why they are more corrupt today.

Corruption charges, particularly in young democracies, can be both politically destabilizing and empower undemocratic elements. The military has leveraged corruption charges in both Pakistan and Bangladesh as almost a trump card against civilian leaders - the population of each country can always agree that their civilian leaders are corrupt and so it gives the military a ready pretext to take over. In Sri Lanka you can recently see a similar, but slightly different phenomenon, of Rajapaksa putting former General Fonseka in jail on grounds of corruption after he challenged Rajapaksa for the Presidency. Corruption charges are the language of regime change in much of the developing world, including South Asia. However, this politicized use of corruption charges has arguably helped undermine the credibility of institutions that could more slowly and systematically tackle corruption in these countries. The more zealous prosecution of corruption in higher office can therefore potentially frequently lead to more corruption, not less.

I want to make a few points clear though as I feel the argument is easy to misconstrue. First, as I point out in the article I am not saying India is Pakistan or Bangladesh - a strong lok pal will not lead to a coup in India. It has a long democratic history and relatively strong institutions. Still, corruption charges can still be hijacked in India as a tool to achieve political ends. Some of which might be more dangerous than others.

Second, I am not saying that we should turn a blind eye to corruption. The entire reason that the military can use corruption charges to take over in a place like Pakistan or Bangladesh is because corruption is a very real phenomenon amongst civilian political leaders in these countries (it's also very real amongst the military, but because of their guardianship role this can't be pointed out as explicitly in these countries, or most countries, which tend to hold their militaries in reverence). The presence of corruption is not only an injustice in itself, it not only hinders economic growth, but it also threatens democracy. Still, I think it is dangerous to view corruption charges as a trump. In other words, there are many competing interests in a society and we have to understand that trying to combat corruption, especially where there aren't strong institutions, can lead to politicization of such charges and a further undermining of institutions that could more systematically tackle graft. This is a very real danger other countries have experienced and we ignore it at our peril.

Third, and this is something I am still unsure about, but I don't think I'm making an argument about sequencing. Some have criticized Nehru for not more actively prosecuting corruption early in India's history to "nip it in the bud". I suggest that perhaps Nehru's was a smart move, especially when we see where high profile corruption charges in India's neighbors led. One could read this to say that in a new fledgling democracy one should first build strong institutions and then go after corruption. Going after corruption too early threatens the stability of the young country's institutions. One could say India now has such institutions in place and so is in a position to go after corruption more aggressively, but it wasn't twenty or thirty years ago (think Indira Gandhi). I' don't think I'm convinced by this argument. I think one could potentially zealously go after corruption while building one's institutions from the very beginning. The point is that I don't think one could do this successfully (or without a great deal of luck) without realizing the dangers involved in this strategy and taking a number of precautions.

The specific policy suggestion of this piece to the lok pal debate is one that many other commentators have made. Mainly that the lok pal, if it comes into existence, will have to be responsive to and a part of the Indian democratic system, not outside or above it, and that understanding it as completely removed from the political process is dangerous. I do hope a comparative analysis though adds some texture to where that danger might lie as I think it's important to think as concretely as possible about where or how the lok pal might go wrong, just as one should do when planning any institution.

Tuesday, May 17, 2011

In an order dated February 14, 2011, the Karnataka High Court in the MLA Defection case (D. Sudhakar v. D.N. Jeevaraju) had held that when an independent member of a legislative assembly becomes a minister in a government formed by the single largest political party, he loses his independent character and becomes liable to disqualification on the ground of defection. A day later, in this post it was asked: “Does this holding discredit the resolve of independent members generally, by assuming that they will not “retain their independent…character” or “stick to their own ideologies” when they become ministers?”

On May 13, 2011, the Supreme Court (Justices Altamas Kabir and Cyriac Joseph) disagreed with the holding of the Karnataka High Court (paragraph 2):

“We are unable to accept the submission made on behalf of the respondents that by extending support to Shri Yeddyurappa in the formation of the Bharatiya Janata Party led Government the appellants had sacrificed their independent identity. The fact that the said appellants also joined the Council of Ministers does not also point to such an eventuality. It is no doubt true that an independent legislator does not always have to express his intention to join a party in writing, but the mere extension of support to Shri Yeddyurappa and the decision to join his Cabinet, in our view, was not sufficient to indicate that the appellants had decided to join and/or had actually joined the Bharatiya Janata Party, particularly on account of the subsequent conduct in which they were treated differently from the Members of the Bharatiya Janata Party”. (emphasis supplied)

As many of us have been closely following, a political crises is brewing in Karnataka. The SC recently set aside the disqualification of 11 BJP MLA's who had rebelled against the party. I hope to write on the SC judgment in more detail soon, but at first glace it seems to conform to the well established set of precedents which state that the Speaker must conform to certain procedural requirements in his decision, and that the decision is subject to judicial review on narrow administrative law grounds like mala fide, violation of natural justice, and the like.

For now, I just want to point to a surprising editorial in the Indian Express that grossly misrepresents the SC verdict. It states "The Supreme Court recently restored the membership of the 11 rebel BJP MLAs, who had been disqualified by the assembly speaker, thus saving the Yeddyurappa government’s skin.".

Sunday, May 15, 2011

PRS is looking to hire one person for the position of Manager of the Legislative Assistants to Members of Parliament (LAMP) Programme.

Core Responsibilities: The Programme Manager will be responsible for the management and execution of the Legislative Assistants to Members of Parliament (LAMP) Fellowship Programme. S/he will be involved in the day to day management of the programme, which would include engaging with Members of Parliament to understand their research needs as well as managing the team of Legislative Fellows to coordinate their training modules, their research work for the MPs and other activities of the LAMP Fellowship. The Programme Manager will also initiate capacity building programmes for the LAMP Fellows through the year. In addition, the person will be required to undertake outreach oriented projects at PRS.

Abilities Required: (i) Effective management skills to engage and manage bright young LAMP Fellows (ii) Strong inter-personal skills to engage with Members of Parliament (iii) Ability to grasp issues related to policy and Parliament and work with data (iv) Sharp oral and written communication skills (v) Ability to undertake multiple projects and deliver in a timely manner.

Qualifications sought: Masters degree in any discipline. 3-5 years of work experience sought.

Saturday, May 14, 2011

In a paper published on the website of the Finance Ministry in March 2011, the Chief Economic Advisor to the Indian government, Kaushik Basu, proposed that in order to tackle corruption in India, the act of paying a bribe should be made legal, while retaining the illegality of the act of receiving a bribe. The proposal was vehemently opposed on moral grounds by some, who argued that by making the act of paying a bribe legal, we would confer a vestige of “morality” on the act of paying bribes, and consequently corruption would increase, not diminish. However, the moral opposition to Kaushik Basu’s claims ignores the tenuous nexus between law and morality, and overlooks the fact that there is a moral reason for legalizing the act of paying bribes in India –individuals who pay “harassment” bribes in India are often “victims” of corruption, and a law that punishes victims is itself highly immoral.

At present, the Prevention of Corruption Act, 1988, punishes both the giver and receiver of a bribe. Accordingly, a bribe giver has serious disincentives against blowing the whistle on the government official who demands a bribe, since the bribe giver herself is liable to be prosecuted after paying the bribe. Equally, a person has disincentives against not paying the bribe and blowing the whistle, since her work does not get done. Basu argues that by making the act of paying a certain class of bribes (ones he terms “harassment bribes”, i.e. “bribes that people often have to give to get what they are legally entitled to”) legal, a bribe giver will no longer be afraid of complaining against the official who demands a bribe, after the bribe has been paid and work done. This legal construct, Basu argues, would dissuade government officials from even asking for bribes in the first place, since they would be aware that bribe givers could complain against them with impunity after the act.

How the law will go about the task of distinguishing between “harassment” and “non harassment” bribes is the primary question that Basu’s proposal will have to address, perhaps by excluding corporations from its scope and by defining entitlements necessitating “harassment bribes”. However, those that argue against Basu’s proposal by saying that making the act of paying bribes legal in India would make bribery “moral”, acceptable, and therefore more rampant, are wrong for at least two reasons.

First, the moral argument fails to distinguish between law and morality - what is legal is not always moral, and vice versa. After all, it is immoral for a man to cheat on his wife, but it is not illegal for him to do so (unless he cheats with a married woman). Within certain limits, corporate houses can adopt perfectly legal though highly unethical and immoral practices to destroy competition. The very idea of “damnum sine injuria” in legal thought testifies to the fact that harm can be inflicted upon a person without committing an illegal act. This proposition also works when flipped around. After all, it was illegal but moral for Oskar Schindler to disobey Hitler’s laws in Nazi Germany, and for Mahatma Gandhi to disobey salt tax laws in colonial India. The argument that legalizing the act of giving bribes will somehow sanctify it and make bribery moral ignores the fact that the connection between law and morality is often tenuous, that making bribery legal will not make it moral.

Second, it can be dangerous to adopt high moral arguments by ignoring rampant social diseases. The moral opposition to Basu’s idea is reminiscent of moral opposition to legalizing prostitution. Its opponents posit that legalizing prostitution will have the negative consequence of making the act of prostitution moral. Yet, this argument ignores the social reality of prostitution, that despite the law’s prohibitions prostitution will continue to exist in any society, and so will poor health standards amongst sex workers. Far from making prostitution moral, the law that legalizes prostitution opens its eyes to the social reality of the existence of sex workers, by setting up health checks, precautionary standards, and by controlling disease. Analogously, refusing to legalize the payment of bribes on moral grounds ignores the fact that corruption will continue to exist in India. On the other hand, legalizing the act of paying bribes would free up unwilling bribe givers to complain against the true perpetrators of corruption, those that demand bribes.

Finally, the moral argument also ignores the fact that there is a moral reason to legalize harassment bribes in India. This is because in some cases, those who pay bribes to get entitlements like pensions or water supply are “victims” of corruption more than they are perpetrators of or accomplices to corruption in India. Indian law is known to punish victims: it punishes the boy who attempts suicide, the father who pays dowry to marry his daughter off, and shamefully, until 1990 even a rape victim was considered an accomplice to the crime of rape. Analogously, though to a much lesser extent, the citizen who parts with hard earned money to inspire public servants into action is a victim of the crime of corruption in India. In 2010, the Delhi High Court (Aniruddha Bahal v. State, 172 (2010) DLT 268) was appalled by the fact that when journalists in a sting operation exposed 11 Parliamentarians on camera for having taken money to ask questions in Parliament, the journalists were prosecuted, but not a single case was registered against the Parliamentarians. In exonerating the journalists the High Court arguably recognized the principle that the bribe giver in India is a victim of bribery more than she is an accomplice to the crime. Those that argue that Basu’s proposal would encourage the Indian citizens who opt not to pay bribes to start paying bribes in India perhaps overlook the fact that not paying a bribe is hardly an option for victims of corruption in India anymore.

The law that punishes a bribe giver arms the government official who demands the bribe more than it arms the Indian citizenry, much in the same way as the law that punishes the giver of dowry arms the family that demands the dowry – in both cases, the person who demands payment can file a police complaint against the person who makes the payment if the latter decides to complain.

We would do well to exclude corporations (and their agents) from the ambit of Basu’s proposal. It is well known that some corporate houses in India have succeeded by virtually institutionalizing corruption in India, and allowing such corporations to continue to do so with legal impunity would be foolhardy. Further, foreign corporations prohibited by their domestic laws from paying bribes overseas (e.g. under the Foreign Corrupt Practices Act in the US) would consequently be able to pay bribes in India if Basu’s law includes them within its ambit. However, punishing the retired judge for paying a bribe to get his pension, or the journalist for exposing corruption on camera, results in punishing the victim of an offence, and disables her from speaking up against the perpetrators of corruption in India.

Monday, May 02, 2011

Katherine Lemmons and Jeff Redding are seeking scholars to collaborate on an exciting new project that examine the growth of non-state providers of Islamic law and governance.

Project Statement

In recent decades, states around the globe have turned to non-state providers to furnish services traditionally offered by the state. These include security, health, and education. For reasons that range from neoliberal approaches to governance to overburdened court systems, law is increasingly among the social services offered by non-state institutions. While “alternative dispute resolution” (as the provision of non-state legal services is frequently called) has received support and praise in many circles, not every “alternative” to state courts and state law has generated equal enthusiasm. And indeed, non-state providers of Islamic law and governance have generated mostly consternation and contempt when they have attempted to resolve litigants’ disputes outside of formal state courts.

Over the past 10 years, fierce debates have erupted in Canada, the United Kingdom, India, and Kenya over “shari‘a courts” and the dispute resolution services that these institutions offer. These institutions of adjudication have faced much criticism. Common allegations include that shari‘a courts threaten the secular nature of the states in which they are situated, that they serve as sources of communal coercion and brow-beating, and that they threaten the civil and human rights of the women who appear before them.

Many individuals have contested this simplistic description of shari‘a courts, whether through on-the-ground activism or scholarly investigations and analyses. This project aims to build upon these earlier interventions by coordinating a trans-national, inter-disciplinary analysis of the operation of shari‘a courts throughout Asia and Asian diasporas. While there is already significant scholarship on shari’a courts in many parts of the world, including Africa and the Middle East, there is a paucity of detailed ethnographic analysis of such institutions in Asia and Asian diasporas. Further, what scholarship does exist is limited to one national context. By bringing together scholars working on Islamic law in a broad range of Asian nations and their diasporas, we hope to encourage a more nuanced and broader scholarly discussion about contemporary Islamic legal practice. And indeed, given the many characterizations of how women, in particular, are disadvantaged by these non-state religio-legal institutions, this project will focus especially on unpacking and diagnosing claims about gender disadvantage within shari‘a courts.

While each participant in this project will have a set of research interests and questions that is both distinct from and overlapping with any other participant’s questions, we would like each participant to address the following questions (amongst many possible other ones) in the course of their scholarly research and writing for this project:

1) Who initiates actions within the shari‘a courts that you are examining? Do women or men more frequently approach these institutions? What are the economic, ethnic, or linguistic backgrounds of those who approach them?

2) Why do people approach a shari‘a court instead of a state court? Are both kinds of courts approached simultaneously, but each for different purposes and reasons?

3) In the jurisdiction you are researching, what is the procedure that a shari‘a court follows in investigating, hearing, and deciding claims? Is this procedure different from that followed in a state court? Is there an appeals process?

4) What is the consequence of a decision from a shari‘a court? Is there a way to enforce the decision through the formal institutions of the state, or is social pressure the more salient outcome of a judgment? Are disputants satisfied with the outcomes of the hearings?

5) How are sex/gender roles implicated in the institution you are researching? How are sex/gender roles produced, remade, and/or reinforced in the context of these institutions?

Collaboration

Prof's Lemmons and Redding are inviting scholars to participate on a project that investigates non-state Islamic dispute adjudication institutions in Asia and Asian diasporas. While there is already significant scholarship on shari’a courts in many parts of the world, including Africa and the Middle East, there is a paucity of detailed ethnographic analysis of such institutions in Asia and Asian diasporas. Further, what scholarship does exist is largely limited to one national context. By bringing together scholars working on Islamic law in a broad range of Asian nations and their diasporas,they hope to encourage a more nuanced and broader scholarly discussion about contemporary Islamic legal practice.

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